It's a mad, mad Internet: globalization and the challenges presented by Internet censorship.

AuthorBauml, Jessica E.

"It is very difficult to do business if you have to wake up every day and say 'OK, whose laws do I follow?' ... We have many countries and many laws and just one Internet."--Heather Killen, former Yahoo! senior vice president of international operations, 2000. (1)

  1. INTRODUCTION II. THE PROBLEM A. The Challenge of the Internet B. The Great Firewall of China C. Domestic and International Laws on Freedom of Speech D. Corporate Complicity III. PROPOSALS ADDRESSING CORPORATE COMPLICITY A. International Law B. The Global Online Freedom Act C. Global Network Initiative D. The Global Compact E. Changing Gears in Combating Corporate Complicity IV. MOVING FORWARD: SCALING THE GREAT FIREWALL OF CHINA V. CONCLUSION I. INTRODUCTION

    On April 11, 2000, the Tribunal de Grande Instance de Paris summoned Internet content provider (ICP) Yahoo! into French courts for allowing the sale of Nazi memorabilia on its website, Yahoo.com. (2) Marc Knobel, a French Jew, had previously discovered the offensive material and requested that Yahoo! remove it. Yahoo!, however, refused on the grounds that doing so would violate its constitutionally protected free speech. As a result, the company was summoned into French court. The French court ultimately held that allowing the sale of Nazi merchandise on Yahoo.corn violated French criminal laws prohibiting the sale of Nazi goods, (3) and, because Yahoo.com was either directly accessible to French citizens (or indirectly through Yahoo.fr, the French portal), the court ordered Yahoo! to block all access through either portal. (4)

    Yahoo!, Inc. v. La Ligue Contre Le Racisme et L'Antisemitisme was a landmark case. It unearthed the complications that arise when multiple countries seek to regulate a borderless network like the Internet, which has the capacity to transmit instantly information all over the world--information that can be simultaneously legal in one country and illegal in another. (5) The crux of the Yahoo! case was determining where to draw the line between two countries seeking to regulate information on the Internet.

    Instead of appealing in the French courts, Yahoo! returned to the United States to request relief in federal court. To abide fully by the French order, Yahoo! argued that it could not simply block access by French citizens to the illegal goods, but would have to block everyone's access, including American citizens--"Asking us to filter access to our sites according to the nationality of web surfers is very naive." (6) Unlike makers of tangible products (such as motor vehicles), Yahoo! argued that it provides an intangible product that could not easily be individually tailored for different markets, as "it had no power to identify where in the world its 'customers' were from and thus no control over where in the world its digital products go." (7) Yahoo! contended that it should not be required to censor itself in order to comply with French laws. The company stated, "We hope that a U.S. judge will confirm that a non-U.S. court does not have the authority to tell a U.S. company how to operate." (8) The district court overturned the French court's ruling on the grounds that, while a U.S. court typically defers to foreign orders, a federal court could not condone a violation of the Constitution or the laws of the United States. (9)

    LICRA appealed the district court's decision to the Ninth Circuit, which, in 2006, reversed and remanded the case. (10) The Ninth Circuit's decision completely skirted the legal question, reversing purely on procedural grounds, (11) an outcome that illustrates the murkiness that still exists in grappling with this complex legal quandary. Interestingly, the court's opinion noted its uncertainty on the extent of Yahoo!'s "First Amendment right to violate French criminal law and to facilitate the violation of French criminal law by others." (12) In other words, the court was unsure of how far one country's laws reach into other countries--unsure of where the line should be drawn between the sovereignty of each when it came to regulating content on the Internet. (13)

    The legal dilemma presented in Yahoo!, Inc. v. La Ligue Contre Le Racisme et L'Antisemitisme became even more complicated when the activities of American companies operating in Internet-restricting countries raised more serious questions of domestic and international law. While Yahoo! refused to change its operations to accommodate French law, it has since changed its tune. In fact, over the last decade, Yahoo!, Microsoft, and Google have come under fire for their cooperation with the Chinese government and its strict censorship laws, sometimes even providing vital information leading to the arrest and torture of Chinese citizens. (14) These ICPs have been criticized fiercely by human rights activists, the European Union, the United States government, and many others for being complicit in China's human rights violations of free speech and expression. Yahoo!, Microsoft, and Google, however, argue that they have no choice but to comply with China's censorship laws--otherwise, they risk being pushed out of the market altogether. Given a choice of two evils, these ICPs contend that it is better to remain in the market and provide some access than to leave altogether. (15)

    Should ICPs do the morally responsible thing and leave the market, or should they stay (or even be allowed to stay) in a market that mandates their complicity in such a rigid system of censorship?

    There is no doubt that corporate complicity in Chinese censorship raises significant concerns and, moreover, unearths complicated questions regarding how to tackle the issues that arise from these companies' operations in the Chinese market. While there have been many proposals posited by multiple domestic and international sources in the hopes of addressing the human rights violations and stopping corporate complicity, this Note argues that none are sufficient to address properly the real problem. Furthermore, this Note argues that it would be a mistake to encourage or to force these ICPs to leave the market altogether. No one can deny the significant human rights abuses that occur in China as a result of its censorship laws; however, it is important not to implement quick fixes that fail to target the heart of this complex problem. This Note argues that it is far more beneficial to the ultimate goal of preserving Internet freedoms and stopping censorship in China if ICPs are allowed to maintain their market presence than if they are either forced to leave entirely or penalized for staying.

    Part II gives a brief overview of the unique challenges that the Internet presents to the international community, and it provides a general discussion of China's censorship system, including what these ICPs are actually doing in China that is raising so many eyebrows, as well as the domestic and international laws that are being compromised in the process.

    Part III discusses the various solutions that have already been put on the table to address concerns over corporate complicity in Internet-censoring nations and argues that the present solutions are inadequate to address the real problem. Part IV posits that the best and most viable solution available, while seemingly not the most appealing, is to allow these companies to continue operating in China. The Note concludes that the tone moving forward should be one of patience and argues that the type of change many would like to see in China is very possible even without taking the drastic step of forcing ICPs like Yahoo!, Microsoft, and Google out of the Chinese market.

  2. THE PROBLEM

    The ubiquitous nature of the Internet itself sets the stage for the very distinct problems that emerge from American ICPs' operations in China. And while China is not the only country to censor zealously the flow of information on the Internet, (16) it has created what is considered the most complex and highly developed system of censorship in the world (17)--a system that has raised many concerns regarding the human rights violations that result from its implementation. This next section will briefly discuss why the Internet presents such a unique problem and then will discuss how China's system of censorship is designed, the ICPs' role in carrying out its policies, and finally, the domestically and internationally protected rights that are compromised as a result.

    1. The Challenge of the Internet

      Due to its unique decentralized nature, the Internet poses distinct challenges for nations in their quest to regulate its content, and likewise, has created an interesting predicament for international relations. Scholars have posited that international trade has a spillover effect on international relations, transforming relationships among nations by promoting interdependence and consequently producing economic stability and peace in a globalizing world. (18) While this is a valuable and fundamental theory on trade and international relations, it does not anticipate the complexities that arise with the Information Age and the advent of the Internet. (19)

      By the 1990s, there was a general concern that the challenges the Internet presented to governing bodies would ultimately diminish the relevance of the nation-state all together: "The Internet ... cannot be regulated." (20) These concerns have, if anything, intensified as more issues have been brought to the forefront of international debate. While the Internet has provided a medium for improving communication in an increasingly global and interconnected world, it is by its very nature borderless and can transmit information instantaneously. Likewise, unlike tangible products that are traded on the global market, content on the Internet cannot be tailored for individual markets but instead is globally accessible in an infinite number of locations and is stored in "cyberspace," effectively "elud[ing] the control of any single business, individual, or...

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